State v. Aitken

Under ORS 161.067(3), criminal violations involving the same conduct against the same victim will merge unless the violations can be separated by a sufficient pause in the defendant's criminal conduct that would allow an opportunity to renounce the criminal intent.

Defendant appealed his convictions and the trial court's sentencing on those convictions. Defendant stabbed a woman (W) in the neck and stomach, then stabbed a man (M) in the back twice. After stabbing M in the back, Defendant proceeded to re-engage W. M stepped between Defendant and W and was subsequently stabbed in each arm. Defendant was indicted for six counts of assault. The trial court merged the separate stabbings to W, and each of the separate stabbings to M, concluding that Defendant was guilty of three counts of assault. The trial court refused to merge the separate stabbings to M's back and arms, finding that those were separate actions. ORS 161.067(3) provides that when there is one criminal episode that violates one statutory provision involving one victim, the violations will not be separately punishable unless there is a sufficient pause in criminal conduct to allow an opportunity to renounce the criminal intent. The Court, following "Watkins," held that there was adequate evidence to find a sufficient pause in Defendant's conduct to create two separate criminal events during the altercation. Remanded for resentencing; otherwise affirmed.